There are numerous legal requirements placed on human resource professionals to properly create, maintain, and protect the confidentiality of employment records. Federal and state agencies have stepped up their audits of personnel records, and employees frequently request information contained in their employment records. In navigating these treacherous waters, human resource record keeping practices can be your best defense or your worst enemy.
Take, for example, the recent experience of Oakland University. In 2013, Oakland University fired its former women’s basketball coach who, according to a report in the Detroit Free Press, was mentally and emotionally abusing her players, was “obsessed” with the players’ eating habits and body fat, and refused to follow orders to separate her religion from her coaching. The former coach sued, and both parties fought over whether an investigation report created by Oakland University qualifies as a personnel record under Michigan law and therefore must be produced. Although the lawsuit is still pending, in November 2015, the judge ruled that Oakland University must provide to the former coach a copy of the disputed investigation report, which will now be an essential piece of evidence in the former coach’s wrongful discharge litigation.
The Oakland University lawsuit provides Michigan employers with a good reminder as to their obligations when it comes to complying with legal requirements concerning documents maintained in employee files. Under Michigan law, the definition of “personnel record” is quite broad, although some documents that may otherwise fall within this definition may still be excluded from production. The issue of whether to exclude it is thorny, however, because if an employer excludes a document that a court ultimately determines should have been included, a court may refuse to allow that document to be used as a defense. Also, if an employer is found to have failed to meet its legal obligations, a court may order the employer to comply with the law and hold the employer in contempt for failing to comply. In addition, an employee is entitled to recover actual damages, a statutory penalty, and costs and reasonable attorney fees.
For these reasons, it is important to understand what should and should not be kept in an employee personnel file, have in place a proper employee record keeping system, and establish procedures for responding to employee requests to review their personnel files.
Contributed by Michael Blum and Melissa Jackson of Foster, Swift, Collins & Smith, P.C.